Confidential paper intensifies questioning of drone policy

>>> last night on this show investigative agent michael isikoff broke a story about obama and its policies. he broke the story ahead of the president's announcement for new choice of cia director , john brennan . john brennan was once the deputy cia director . he is now president obama 's counterterrorism director at the white house . but if he is to run the cia for president obama , john brennan is first going to have to face questions on thursday about some of what michael isikoff turned up here on this program last night. a justice department white paper elaborating the administration's reasoning for why it thinks it is legal to kill american citizens on the president's say so. or actually, on the say so of an informed high level official of the u.s. government . so maybe that's the president, but maybe that's somebody else. michael isikoff 's scoop ended up at "the new york times" today and the " washington post " and the hill and slate and salon and ap to name a few. it was everywhere. and then at a press conference today, the attorney general was asked about it.

>> last night nbc reported a white paper that was prepared by the justice department undated, unsigned about the legal -- the legal pinnacles for targeting americans overseas. could you please give us what the precise definition is and how that would be carried out?

>> well, there have been a series of speeches that i gave, jay johnson gave, john brennan gave where we tried to lay out for the american people the considerations that go into the operations. we say that we only take these kinds of actions when there is an imminent threat .

>> mr. attorney general, you brought up the phrase " imminent threat ." is that the same as an ongoing threat or is this a difference?

>> so many of these things are fact-based. i can't necessarily get into the weeds and kind of parse these things. you can't examine these terms without having a reference to the facts.

>> the fax. these things are based on facts. facts that i cannot -- facts that i cannot tell you. so i cannot reference them because i cannot tell you them, but they are facts. watch.

>> why not release the memos? i mean, you were a driving force behind releasing the bush administration 's torture memos. why aren't you a force for this?

>> well, i mean, we'll have to look at this and see how -- what it is we want to do with these memos. but you have to understand that we are talking about things that are -- that go into really kind of how we conduct our offensive operations.

>> right. exactly. they go into how you conduct your offensive operations. that's the thing we want to know about.

>> this memo, the memo doesn't seem to be classified. the writer is marked confidential, but not classified. why not release that to the general public ? you said you can only discuss that in a classified setting. but the memo we're discussing. we're taking what sounds like an ongoing threat and saying it's an imminent threat .

>> that's something we would have to look exactly what is in the white paper . we would have to look into that.

>> you're not aware of what is in the white paper ?

>> we'll have to look that.

>> have to look into wrote it. also, nbc put the whole thing online. seriously, check it out. super easy. we linked it at maddow blog. 16 pages long, shorter than most articles in the new yorker. now a bipartisan group of 11 senators has written to president obama asking him to release about what is still secret about why the president and the administration think it is legal to kill americans this way. quote, it is vitally for congress and the american public to have a full understanding of how the executive branch interprets the limits and bound relatives this authority so that congress and the public can decide whether this authority has been properly defined and whether the president's power to deliberately kill american citizens is subject to appropriate limitations and safeguards. honestly, in the real world , particularly in the real political world , there is some compunction, but very little compunction about the president using extreme counterterrorism measures. the president using lethal force against bad guys . in the case against the american whose killing seems to have inspired a lot of the secret legal reasoning, the case against anwar al awlaki doesn't seem to tug at the heart strings. adds a senior recruiter for al qaeda he was associated with the mass shooting attack at ft. hood in 2009 in texas and with the attempted christmas day airliner attack, the underwear bomber, right? later that same year. if we accept that the u.s. is at war with al qaeda , then it is not a stretch to believe that the u.s. would target a prominent al qaeda figure like anwar al awlaki in that war. with some exceptions, the broad political and moral issue here is not an issue with u.s. forces killing bad guys . the issue here is who is a bad guy and how do you figure it out? if this is the means by which we're going to decide not that you're going to be arrested and tried, but the means by which we will decide whether the president can order you dead, then on what basis is the president making that decision? how do they determine who is a bad guy ? or as oregon senator ron wyden put it in a question, a written question to the president's cia nominee john brennan , how much evidence does the president need to determine that a particular american can be lawfully killed? following naturally on from that, and this is the one that keeps me up at night, does the president have to provide individual americans with the opportunity to surrender before killing them? does this obligation change if the president's determination that a particular american is a valid target has not been publicly announced or publicly reported? think about that, right? if you're an american citizen and the president is going to kill you, do you have the right to give yourself up instead so you don't get killed? and how do you know you should do that if the president's decision that he is going to kill you is a secret decision that nobody ever tells you? and are we right also in only imagining this kind of thing happening in places like yemen or pakistan? quoting again from senator wyden here, are there any geographic limitations on the intelligence community 's authority to use lethal force against americans ? do any intelligence agencies have the authority to carry out lethal operations inside the united states ? good question. good questions. and now the question is whether the administration is going to make john brennan field those questions alone before the senate on thursday at his confirmation hearing. are they going to disclose anything else to provide answers to these questions before their nominee is forced to try to handle them alone on thursday when his nomination is on the line? tick-tock, the hearing is